On appeal from the Superior Court of New Jersey, Chancery Division, Camden County, C-193-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Winkelstein.
In this dispute over the terms of the transfer of real property from plaintiff Francis S. Eldredge to defendants Michael Skelly and Paula Skelly, defendants appeal from the court's August 18, 2006 order granting plaintiff's motion for summary judgment, requiring defendants to pay plaintiff monetary damages plus counsel fees. We reverse.
Plaintiff owned a single-family home located at 1234 Chew Road in Waterford Township. Defendant Paula Skelly is his step-granddaughter, and Michael Skelly is her husband. Plaintiff listed the property for sale in an agreement dated February 12, 2005. He executed an addendum to the listing agreement on February 16, 2005. That addendum said:
This is to clarify the commission agreement made between Francis Eldredge and . . . Century 21 Reilly Realtors. Century 21 Reilly Realtors will only collect a commission and transaction fee of 1% of the sale price of the home if Francis Eldredge obtains the buyer for the above property. This agreement is subject to immediate family or acquaintances listed below. . . . [emphasis added.]
Paula Skelly was listed as one of the immediate family members on the addendum.
On May 3, 2005, plaintiff and defendants entered into a contract of sale (the contract) in which plaintiff agreed to sell the property to defendants. The purchase price was $225,000 to be paid as follows: upon the signing of the contract, defendants would pay plaintiff $2000; plaintiff would grant defendants a "gift of equity" in the amount of $115,000, to be credited toward the purchase price; at settlement, defendants would pay plaintiff $18,000; and, plaintiff would take back a $90,000 mortgage. Of relevance to the issues on appeal, paragraph twelve of the contract, titled "Possession, Occupancy and Tenancies," provided that "possession and occupancy will be given to Buyer [defendants] at the time of settlement." Paragraph twenty, titled "Entire Contract, No Oral Representations," stated: "This contract is the entire and only Contract between Buyer and Seller and cancels and replaces any previous agreements between them. This Contract may be changed only in writing signed by both Buyer and Seller. Any Representations or Agreements Not Contained in this Contract are of No Effect."
Despite that the contract called for possession of the property to be given to defendants at closing, plaintiff claims that defendants represented to him that he could live in the property for as long as he lived. He asserted in his answers to interrogatories that had defendants not made that promise to him, he would not have entered into the contract, but instead would have sold the property "in the open market as he originally planned to do in February 2005."
Subsequent to the execution of the contract, but before closing, the parties attempted to resolve the question of whether plaintiff would be entitled to reside in the property after title was transferred to defendants. By letter of May 18, 2005, plaintiff's attorney forwarded an "Agreement of Occupancy" to defendants' counsel. The cover letter stated: "Enclosed herewith please find Agreement of Occupancy which may satisfy everyone in this matter. If your clients are agreeable, please advise and I will send you the original." The agreement of occupancy reads, in part, as follows:
1. The OCCUPANT was the former owner of 1234 Chew Road, Waterford, New Jersey and the owner was the purchaser of 1234 Chew Road, Waterford, New Jersey.
For the sum of One ($1) Dollar Consideration:
2. The OWNER will allow the OCCUPANT to reside at 1234 Chew Road, Waterford, New Jersey, until he dies [or] is admitted into a nursing home or decides to leave the premises ...